Why should I have a Will?

Every person over the age of 18 years, is entitled to, and should have a Will. Remember your circumstances may change overnight. You may consider a Will unnecessary because you may hold most of your property as joint tenant with say, your wife, and therefore upon your death the survivor would automatically take that property. The joint tenant may die unexpectedly leaving you as the surviving joint tenant and the owner of substantial assets that should be the subject of a Will. It is better to execute a Will now rather than when you are of unsound mind and understanding. You should be given an opportunity to appoint an Executor to administer your affairs upon your death. Failure to make a Will can result in your estate being distributed according to the Rules of Intestacy and not in accordance with your wishes.

What happens if I die without leaving a Will?

A person who dies without a Will is said to die "intestate". If you have not left a Will, it is up to the person with the greatest interest in your estate to apply to the Court for what is known as Letters of Administration. The Public Trustee can also be appointed as the Administrator of your Estate and will charge a fee, being a fixed percentage of the value of the estate, for its administration irrespective of how much time is spent in the administration.

Appointing an Executor

Answer: You should choose an Executor who will be responsible and reliable for the administration of your affairs such as collecting the assets, paying any debts and dividing the assets amongst the beneficiaries in accordance with the terms of your Will. You may appoint your Solicitor as your Executor.

What if I have a previous Will?

When you draw a new Will it is an easy matter to cancel your previous Will.

What effect does marriage and divorce have on a Will?

If you marry your Will may be revoked automatically. It is possible to draw a Will in contemplation of your marriage and such Will is not cancelled upon your marriage. If you obtain a divorce any gift to your former husband / wife is revoked and any appointment of that person as your Executor is cancelled.

Can I leave specific gifts to certain persons?

Yes. You may leave whatever money that stands to your credit in your Bank account at the date of your death to a particular person. The same applies to any specific item nominated by you.

What is a Testamentary Trust?

It is, simply stated, a trust that is created in your Will which directs that a Trustee is to be appointed and orders the Trustee to administer certain matters according to your specific directions. It usually, but not always, involves the distribution of money in the Trust by the Trustee to the beneficiary(ies) over a period of time. The benefits of such a Trust include:-

• the Trust can protect assets from Creditors;

• assets in the Trust awarded to a beneficiary can be protected in the event of that beneficiary's divorce and will not become the subject of a Family Court Order;

• if a beneficiary is incapable of managing his / her own affairs then a Trustee can administer the Trust assets on behalf of the beneficiary;

• certain tax advantages.

SUPERANNUATION

Is this an important aspect when drawing a Will?

Yes, you must give consideration to your superannuation fund when drawing a Will because sometimes the benefits from a superannuation fund will not form part of your estate. Superannuation may be paid, upon your death, in the following ways:-

• to your Executor so that it forms part of your estate;

• to a nominated beneficiary in accordance with a "beneficiary nomination form";

• to such person / persons as the superannuation Trustees are satisfied are financially dependant upon the deceased at the time of their death.